ment constituting a link of the title. This is, however, to be corrected in framing the decree, if the bill sets forth grounds for ,equitable action. A demurrer will not be sustained a prayer is too ample or exacting in the relief sought, but the proper relief can be accorded and limited by the decree. As a general rule, the entire. faUure to execute a power will not be aided in equity. Where, however, a party has begun to execute, and the execution is defective through accident or mistake, eqility may 'interpose its aid by decreeing a complete and perfect execution. This is an extraordinary jurisdiction, and is only exercised in behalf of those who are considered as possessing mer'itorious equities or against those who have no equally meritorious defenses. Its operation affects, among others, purchasers,includingmortgagees, lessees, and creditors. As to the defects of execution of a power which will be corrected, they are not such defects as are of the su bstance and essence of the power, but are matters of form, such asthe want Ofllr seal, or of witnesses, or of signatures, etc. Tollett v. Tollett, 1 Lead. Cas. Eq. 365, and notes; 2 Pom. Eq. par. 834, and authorities cited. The demurrer. is overruled.· .
(Oircuit Oourt. D. Ool<Jrado.
EQUITY PRACTICE ORIGINAL BILL.
Where an ejectment suit is brought to recover possession of mining property, and, as an auxiliary to same, a bill in equity is filed to restrain the working of the mine. which ejectment and bill are both dismissed, such dismissal of the bill does not carry out of court with it a cross-bill filed by the defendants for the specific performance of a contract for the conveyance of a portion of the property in question. Such cross-bill, having for its object affirmative relief, may be retained for hearing and decree, notwithstanding the dismissal of the original bilL
FOR SPECIFIC PERFOIUrANClil .
In Equity. Bill and .cross-bill for an injunction, etc. On dismissal of original J. D. Ward and Olinton Reed, for complainants on original bill. Patterson & Thoma8, for defendants on original bill.
BREWER, J. In No. 1,903 this question is presented: There was an ejectment suit to recover possession of some mining property. Auxiliary to that, a bill in equity was filed for an injunction to restrain the working, on which a temporary injunction was issued. Thereafter the defendants filed a cross-bill praying, on their behalf, a temporary injunction, and also setting up a contract for the conveyance of a little fraction of ground. The ejectment suit was dismissed. The complalnants in the original bill dismissed their bill, and insist that by that dismissal the cross-bill also went out of court. The defendants object, being
cross-complainants in their cross-bill, and insist on a right to a hearing, and a decree upon so much, at least, of their bill, as prayed for a specific performance of the contract to con.vey this little tract of disputedterritory. And that is the question which is to be determined,-whether, when. the original bill is dismissed, necessarily the cross-bill goes with it. TheTe is, of course, a certain sense in which the cross-bill is a part of the original action; it is auxiliary to the original bill. It may be filed to setup new matter, but matter only defensive; and of course in such a case as that, as where the cross-bill simply seeks a discovery, when the original bill goes out, the cross-bill goes with it. But it may be and it was filed in this case seeking affirmative relief, presenting matter not purely defensive in its nature. A familiar illustration is where a mortgagee files his bill making other mortgagees defendants, and they come in, setting up; by cross-bill, their mortgages, and praying foreclosure of them. In cases of that kind, does the dismissal ofthe original bill necessarily take the cross-bill out of court? Neither on principle nor thority can such a claim be sustained. The cross-bill is in one sense an independent proceeding. While it is filed in the original action, yet process must be served, or appearance obtained, before there is any issue upon it; and· where the cross-bill sets out matter upon which affirmative relief is sought, and in respect to which testimony is taken, and all the expense of that testimony incurred, it would be unjust to permit the complainant in the original bill to take the whole thing out of court. The statutes of limitation might come in before a new bill could be filed; the difficulties of bringing the parties in the original bill into court,many inconveniences suggest themselves, and the authorities run in. that line. Thus Barbour, in his work on Chancery Practice, (2 Barb. 129,) says: "The connection of the matter of the cross-bill, be it per se legal or equitable, with the snbject-matter of the original bill, gives the court jurisdiction ofthe cross-bill, of which it cannot be ousted by the dismissal of the original bilL" In a recent case in the supreme court, Holgate v. EatO'Yli, 116 U. S. 33, 6 Sup. Ct. Rep. 224, while this question is not discussed, yet t4e decree of that court recognizes the propriety of this rule, for it reverses the decree entered by the circuit court, and remands the case with instructions to dismiss the original bill, and to proceed to a hearing upon the cross-bill. Of course, that could not be done if the dismissal of the original bill took the cross-bill ipso facto out of court. In Lowenstein v. Glidewell, 5 Dill. 325, the matter is discussed on principle by Judge CAJ-DWELL, of the federal court of Arkansas, and his conclusion is in harmony with this view. Many other authorities have been cited from state courts, some based upon statute, others upon the general principles of equity jurisprudence and practice, and they all support the doctrine. It was suggested· that this case presented a different feature, in that this bill-that is, the original bill-was filed only as auxiliary to the ejectment suit, and that, when the ejectment suit went out, the original bill must necef>'Jarily go out, and, it going, the cross,bill must also go. I do not think that result follows. ltwould follow, of course, if the simple relief sought in
the cross-bill was injunctive, and in respect to the operation of the mine in the disputed territory; but where this cross-bill proceeds, as this does, and as it of right may do, setting up new matter, to ask affirmative relief in the way of a decree for a specific performance, .that is something so independent in its nature that it may be, and upon application of the complainants in the cross-bill shoUld be, retained for hearing and decree. I do not, of course, mean to say that by the cross-bill, as is also attempted in this case, you can introduce matter foreign to the subjectmatter of the original bill, and for that litigate; for I understand the cross-bill must be connected with the subject-matter of the original bill, and that alone. In respeot· to the original bill there has been no formal entry, hut counsel declare it should be, and so it will be entered, "Complainants dismiss bill, and cross-bill retained for hearing and deoree."
CHARLES GREEN'S SON
(Gircuit Oourt, 8. D.Georgia, 1!l. D. lune 4, 1887.)
ALIEN-PREs'o1a'TION AS TO STATUS.
The original BtatuB of an alien is presumed to continue until the contrary be shown.
The naturalization of an alien as a citizen of the United S,tates is strictly a judicial aot. The action of the court must be entered of record as its judgment, and, if valid, it is final and closes inquiry. In the absence of proof of the loss or destruction of' a record, the record can be proved only by the reoord itself, pr by an extraot therefrom.
The certificate of the clerk of the district court, reciting that the applicant has been duly. admitted to citizenship, but failing to show or verify any extract from the record, or minute of the action of the court, is not competent evidence to show naturalization.
SAME-RECORD OF PROCEEDINGS.
The act of congress, Apri114, 1802,(2 St. at Large 154,) expressly requires the record of proceedings for naturalization to be recorded; and the rule that the record of, the action of the court. in passing on the application, must be produced or accounted for, has Dot been departed from ina decided case. Where a court recites its own proceedings, unerring verity is attributed by the law to the record.
The record, if not correctly made up, or if lost or destroyed, should be perfected or replaced by appropriate proceedings in the court where the judgment was pronounced. Naturalization cannot be proved by parol.
NATURALIZATION-PAROL PROOF. SAME-ExpATRIATiON.
In this country expatriation is a fundamental right. The domicile of birth easily reverts,and a very short residence, with the intention to regain the original domicile, issuftlcient. A native of a foreign government may reas-